Opinion
Civil No. 05-18-P-C, Criminal Nos. 90-49-P-C 90-79-P-C.
January 28, 2005
ROBERT E SUVEGES, JR, BUTNER, NC, PRO SE, for Plaintiff.
MARGARET D. McGAUGHEY, OFFICE OF THE U.S. ATTORNEY DISTRICT OF MAINE, PORTLAND, ME, for Defendant.
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
Robert Suveges has filed a motion pursuant to 28 U.S.C. § 2255 seeking to set aside his federal sentence. He asserts that two sentencing determinations made by this Court violated his Sixth Amendment right to a jury trial and his attorney was ineffective for not advocating accordingly. Suveges has already filed one 28 U.S.C. § 2255 motion which resulted in his sentence being reduced from a 360-month term to a 180-month term. Suveges was spurred into § 2255 action again by the issuance of United States v. Booker, ___ U.S. ___, 2005 WL 50108 (Jan. 12, 2005) which held that the Sixth Amendment principles of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) applied to the United States Sentencing Guidelines. Assuming, without deciding, that I could consider this as Suveges's first 28 U.S.C. § 2255 motion in light of his resentencing after his previous § 2255 motion, he is not entitled to any § 2255 relief based on Booker.
Suveges's one-year to file a timely 28 U.S.C. § 2255 vis-á-vis his resentencing judgment has unquestionably expired. See 28 U.S.C. § 2255 ¶ 6(1). Accordingly, with respect to the Booker-based challenge Suveges's presents, his only § 2255 ¶ 6 port in the storm would be subsection (3) which would give Suveges a year from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."
I have already addressed a similarly postured § 2255 Booker claim in Stevens v. United States, Civ. No. 05-10-B-S-, 2005 WL 102958, 1 (D.Me. Jan 18, 2005) (concluding that a District Court could make the initial ¶ 6(3) retroactivity determination on an untimely first petition). And, as I explained in Stevens, inQuirion v. United States, I concluded that Booker would not apply retroactively to timely-filed 28 U.S.C § 2255 motions:
On the same day that Blakely was handed down, the United States Supreme Court concluded that one of Blakely's direct ancestors, Ring v. Arizona, 536 U.S. 584 (2002) — which applied the principle of Apprendi to death sentences imposed on the basis of aggravating factors — was not to be applied retroactively to cases once they were final on direct review. See Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2526 (2004) ("Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review."). In the wake of Blakely, most courts that considered the question have concluded that Summerlin answered the retroactivity question in the negative vis-a-vis Blakely grounds pressed in timely 28 U.S.C. § 2255 motions. See, e.g., Burrell v. United States, 384 F.3d 22, 26 n. 5 (2d Cir. 2004) (observing this proposition in affirming the District Court's conclusion that the movant was not entitled to a certificate of appealability on the question of whether Apprendi applied retroactively); Lilly v. United States, 342 F.Supp.2d 532, 537 (W.D.Va. 2004) ("In Summerlin, the Court found that Ring v. Arizona, 536 U.S. 584 (2002), a case that extended Apprendi to aggravating factors in capital cases, was a new procedural rule and was not retroactive. A similar analysis dictates that Blakely announced a new procedural rule and is similarly non-retroactive.") (citation omitted); accord Orchard v. United States, 332 F. Supp, 23 275 (D.Me. 2004); see also cf. In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) ("Because Blakely, like Ring, is based on an extension of Apprendi, Dean cannot show that the Supreme Court has made that decision retroactive to cases already final on direct review. Accordingly, Dean's proposed claim fails to satisfy the statutory criteria [for filing a second or successive § 2255 motion].").
Civ. No. 05-06-B-W, 2005 WL 83832, *3 (D.Me. Jan. 14, 2005).
Since the issuance of Quirion and Stevens, the Eleventh Circuit Court of Appeals has issued a decision on a second and successive petition that lends support for my conclusion, In re Anderson, ___ F.3d. ___, ___, 2005 WL 123923, *2-4 (11th Cir Jan. 21, 2005), and District Court Judge Hornby, in this District, denied a certificate of appealability to two 28 U.S.C. § 2255 movants in Gerrish v. United States, Civ. Nos. 04-153-P-H 04-154-P-H, 2005 WL 159642, *1 (D.Me. Jan. 25, 2005), concluding that Blakely and Booker are not applicable to cases that were not on direct appeal when they were decided.
The only new twist that Suveges's motion presents is his claim that his attorney was ineffective for not raising theBooker-esque Sixth Amendment challenge during his sentencings and on direct appeal. However, in an unpublished decision, the First Circuit Court of Appeals rejected an ineffective assistance argument regarding counsel's failure to raise a Blakely challenge to his Sentencing Guideline driven sentence on the ground that such a challenge was foreclosed by circuit precedent.Campbell v. United States, No. 02-2378, 2004 WL 1888604, *3 (1st Cir. Aug. 25, 2004) (quoting United States v. Campbell, 268 F.3d 1, 7, n. 7 (1st Cir. 2001)). While the inquiry might be a bit more difficult if Suveges's attorney failed to raise such a challenge in the intermission between Blakely and Booker, counsel's advocacy in Suveges's case occurred long before the dawn of Apprendi and was certainly not ineffective under the then governing law.
Accordingly, I recommend that the Court DENY Suveges's late and latest 28 U.S.C. § 2255 motion.